Mbe Florida -- Torts - Negligence -Breach, Causation, Damages

Front 1

What are the "big picture" differences between the breach analysis and the duty analysis?

Back 1

-- DF's duty is determined through case law
-- whether DF breached that duty is determined through discovery (all the facts that show whether DF conduct was reasonable)

Front 2

For a PF to show breach, what is PF looking to show?

Back 2

-- PF must show that DF failed to meet duty (ie, did not act as RPP/UTC)
-- e.g., "DF had a duty to drive safely; DF breached that duty by: talking on cellphone"

Front 3

if discovery does not reveal DF actions to be negligent

-- how can PF satisfy the "breach" element?

Back 3

-- Res Ipsa Loquitor: a doctrine used by PFs who are unable to show what exactly DF did wrong

Front 4

Example: PF gets toe in his chewing tobacco

PF can establish breach through Res Ipsa by making three showings

Back 4

(1) the accident is normally associated with (ie, most likely due to) negligence; proved through Expert testimony
(2) no other possibly responsible actors (any other actors have been ruled out by PF)
(3) PF's injury was not attributable to any PF action

Front 5

Example: PF gets hit by Acme Co flour barrel falling out of window

how does PF rule out other possible actors responsible for the injury?

Back 5

-- by showing DF had CONTROL over the injury-causing item

Front 6

What is the legal consequence of establishing Res Ipsa Loquitor?

Back 6

-- no directed verdict for DF for lack of proving DF action resulted in breach
-- up to jury: whether to accept DF version (we met our duty) or PF's analysis (no way I could get hit, except for negligence by DF)

Front 7

PF must show TWO causations

Back 7

-- factual causation: where PF links breach with accident ("but for")
-- proximate causation: where liability is fair (i.e., foreseeable) under the circumstances

Front 8

X hit PF after ran red light & talking on phone

How does factual causation work in this example?

Back 8

"but for" test: but for DF's breach, the accident would not have occurred
or look at DF's rebuttal: "even if" careful, I would have hit you because you darted into traffic

Front 9

A & B, two individuals, each negligently fail to extinguish campfire. The two separate fires eventually become one raging fire that burns down PF's house.

What is the causation analysis in this case?

Back 9

-- in cases involving mingled causation, we use the "substantial factor" test
-- "substantial factor" test: a person is considered a factual cause if he contributed to the injury in a significant or substantial way
-- if both DFs were a substantial factor, then each is held joint and severally liable

Front 10

Three men went hunting quail with small gauge buckshot. Two shoot at the same time. One buckshot pellet hits third person in the eye. Since each of the two men has 50% chance of causing third's blindness, what is the causation analysis in this case?

Back 10

-- ordinarily, PF has the burden of proof, which requires proving by a "preponderance of evidence" (ie, > 50%)
-- if there are multiple defendants and unascertainable causation
-- then the BOP shifts from PF to DF to prove their innocence & if not, they are both jointly and severally liable

Front 11

In addition to factual causation, what other causation must PF show to establish Negligence?

Back 11

-- proximate cause (aka legal causation)
-- general rule: DF are only liable for foreseeable consequences

Front 12

While DF speeding on busy street, DF swerves to avoid pedestrian in crosswalk & hits truck. Truck hits car, which propels car into sidewalk, breaking PF's leg.

If PF sues for negligence, will the causation element be met?

Back 12

-- yes, factual causation (but for DF swerving...)
-- yes, proximate cause because facts present an uninterrupted chain of events from DF's act to PF's injury

Front 13

While DF speeding on busy highway, section of interstate collapses (the result of age-related deterioration), causing harm to PF. If PF sues for negligence, will the causation element be met?

Back 13

-- yes, factual causation (but for DF speeding to that location of the interstate...)
-- no as to legal (proximate) causation
------ where DF's negligent conduct creates risk of harm
------ but entirely different and totally unforeseeable result occurs, DF not liable

Front 14

In determine proximate causation, what is the effect of intervening forces?

Back 14

-- whether an intervening force cuts off DF's liability depends on whether the intervening force is foreseeable

Front 15

Proximate cause: what are the well-settled categories in which creation of further injury to PF is foreseeable?

Back 15

-- in all these, its foreseeable that, in some cases, these might occur; thus, these further injuries are proximately caused by DF's original action
-- eg, negligent helpers (bad medical help, bad rescue)
-- eg, protection (negligent efforts to protect person or property)
-- eg, reaction (victim further crushed by persons stampeding to avoid injury)
-- eg, subsequent disease, accident (falling on crutches, breaking other leg)

Front 16

DF runs over PF, who is then pulled to safety by Helper, who dislocates PF's shoulder

Can PF sue DF for the dislocated shoulder?

Back 16

yes, someone helping PF is foreseeable; therefore, proximate cause element met

Front 17

DF runs over PF. While recuperating, PF develops pneumonia

Back 17

-- where diseases brought on by PF's weakened condition
-- the disease's proximate cause is the original injury

Front 18

Apt manager fails to repair exit-only door to parking area. Robber enters & mugs resident.

Was manager's failure to fix door a proximate cause of tenant's injury?

Back 18

-- YES: when reading beginning of fact pattern, ask "what am I afraid of...?" skip to end, "was this the injury I was afraid of"

Front 19

Restaurant fails to refrigerate shrimp, which goes bad. Guest feels nauseous after eating shrimp, then excuses self to vomit in bathroom. After a few minutes, Guest's friend goes to bathroom to assist & slips in vomit on floor & breaks arm.

Was restaurant's failure to refrigerate shrimp a proximate cause of injury?

Back 19

-- NO, not a match: failure to refrigerator shrimp; injury: broken arm;
-- unforeseeable; liability would not be fair

Front 20

What is the eggshell doctrine?

Back 20

-- eggshell doctrine: you take your plaintiff as you find him
-- eg, if he's a hemophiliac & almost bleeds to death from a small cut by DF, DF is still liable for his injuries
-- applies to ALL torts

Front 21

In measuring plaintiff's fault in Negligence cases...
What is the default method? What is the alternative method?

Back 21

-- default method: pure comparative negligence = FLORIDA's method
-- alternative method: partial (aka modified) comparative negligence

Front 22

Which torts does comparative negligence apply to?

Back 22

-- negligence
-- strict liability
-- product liability
-- NOT intentional torts, where traditional joint and several liability applies

Front 23

How does the concept of comparative negligence operate?

Back 23

-- first step: DF shows that PF failed to exercise a relevant standard of care for his own safety
------- i.e., applying RPP standard
------- or sometimes the relevant standard of care is statutory: e.g., jaywalking
------- and if you are a kid, then the relevant standard is the child standard (RPP of like intelligence, age, experience)
-- second step: jury instructed to weigh PF's fault against DF's fault & assign each one a percentage #
-- finally, PF's recovery is reduced by the % assigned to PF

Front 24

in a partial or modified comparative negligence, what does PF recover?

Back 24

-- if PF at fault 50% or less, PF recovery is reduced by that %
-- if PF at fault over 50%, then PF recovers nothing

Front 25

PF is 30% at fault and DF is 70% at fault. Each party suffers 100K in damages.
What is the result in a pure comparative negligence state?

What is the result in a partial (modified) comparative negligence state?

Back 25

-- Pure: PF is entitled to 70K (100K - 30K at fault portion), which is offset by 30K amount DF is entitled to (100K - 70K at fault portion)
-- Partial (Modified): PF is entitled to 70K; DF is entitled to nothing because at fault > 50%

Front 26

PF is 40% negligent and suffers 100K in damages. D1 and D2 are 35% and 25% negligent, respectively.

What is the result in a partial (modified) comparative negligence state?

Back 26

PF is entitled to 60K (100K - 40K at fault portion)
PF can collect 60K from either D1 or D2; each are jointly and severally liable !!

Front 27

PF is 40% negligent. D1 and D2 are 35% and 25% negligent, respectively.

If PF has only sued D1, does that limit PFs recovery ?

Back 27

-- no, joinder of all parties not required

Front 28

In measuring comparative negligence, what is the impact of failure to wear a seatbelt?

Back 28

fact that injured person failed to wear seatbelt when required may be considered evidence of comparative negligence

Front 29

In negligence claim, what is the impact of intoxication?

Back 29

-- FLORIDA: in ANY civil action, PF may not recover if, at time of injury,
-- PF was intoxicated AND
-- as a result of such impairment, PF was more than 50% at fault

Front 30

in Florida, what is the role of assumption of risk in negligence claims?

Back 30

-- abolished by Florida courts
-- but express Assumption of Risk as a contractual concept remains viable

Front 31

Patron of shopping mall harmed by robber; PF alleges that mall did not provide adequate security
Do actions of tortfeasor (mugger) reduce mall's fault ?

Back 31

-- because PF action based on intentional tort, Florida comparative fault statute does not apply
-- thus, traditional joint and several liability applies
-- AND fault of non-party tortfeasor will not be considered in apportioning damages